The title of his talk was Birthday Train or Eurostar which cleverly summed up the subject matter in a nutshell. The Birthday Train is the name of a case before the German Federal Supreme Court in which the Court relaxed the originality requirement for the subsistence of copyright in works that could be protected by design registration in order to give effect to the Designs Directive (Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs). The case reference is Urteil vom 13. November 2013 - I ZR 143/12 - Geburtstagszugand there is a summary of the case here. The reference to Eurostar was an allusion to that Directive and other European legislation as well as decisions of the Court of Justice of the European Union of which the German courts are beginning to take account.

The Birthday Train was on originality. Prof Ohly considered other aspects of German copyright law where European law had been, or in some cases perhaps should have been, taken into account. He called one of those cases "Metal on Metal", a claim by the band Kraftwerk against a rap artist who reproduced a few bars of their recording Autobahn. The band brought their claim for infringement of their mechanical copyright rather than their musical copyright because there is no originality requirement for the subsistence of mechanical copyright. Another case was Pippi Logstocking where it was held that literary copyright could be infringed by making a carnival costume according to verbal description. Prof Ohly discussed the liability of third intermediaries, particularly ISPs. Rather surprisingly we learned that there was no equivalent of s.97A of the Copyright Designs and Patents Act 1988 in German law and that German courts would not grant blocking injunctions of the kind Mr Justice Arnold had ordered in Twentieth Century Fox Film Corporation and otherss v British Telecommunications Plc[2012] 1 All ER 869, [2012] Bus LR 1525, [2011] EWHC 2714 (Ch).

As I had dashed down to London in some haste I did not get an opportunity to grab a notebook from chambers so I took no notes. So far as I could see glancing at the rest of the audience neither did anyone else which was a pity. Some of the things that Prof. Ohler said were real eye openers. It was hard to believe at times that Germany and Britain were both signatories to TRIPs and the Berne Convention. I do hope his talk or its substance will be published somewhere because the legal reasoning in some of the cases is startling.

After the talk we trundled off to the extremities of Gray's Inn where we sipped champagne and munched mini fish and chips and Yorkshire puddings as well as the more usual finger food and canapés. The caterers must have heard that I was in town. It was good to see all my old chums again.

This was an appeal by the National Guild of Removers & Storers ("NGRS") against an award of £1,275 damages in its favour by District Judge Vary for passing off. By dismissing that appeal, His Honour Judge Hacon seems to have settled a 7 year controversy as to what should be the correct measure of damages for what is often an inadvertent misrepresentation of continued membership of the NGRS by a removal or storage business that no longer wishes to remain a member of that guild.

In Caspian Pizza Ltd and Others v Shah and Another [2015] EWHC 3567 (IPEC) (9 Dec 2015) Judge Hacon dismissed a claim for trade mark infringement and passing off. The trade marks relied upon were the device mark that appears above and the word mark CASPIAN. The judge declared the word mark invalid because the defendants had run a restaurant called "CASPIAN" in another part of the country which constituted an "earlier right" within the meaning of s.5 (4) of the Trade Marks Act 1994. However, he did not declare the device mark invalid on the ground that the defendants had no goodwill in the running chef logo. I blogged about the case in Caspian Pizza Ltd and Others v Shah and Anotheron 24 Jan 2016.

The claimants appealed to the Court of Appeal against the invalidation of the word mark on the grou…